Principles of Morals and Legislation

Jeremy Bentham, the son and grandson of attorneys, was born in

London on February 15, 1748. He was called to the Bar, but did not

practise. His fame rests on his work in the fields of

jurisprudence, political science, and ethics. He is accounted the

founder of the "utilitarian" school of philosophy, of which the

theory is that the production of the "greatest happiness of the

greatest number" is the criterion of morals and the aim of

politics. Dying on June 6, 1832, his body, in accordance with his

own wishes, was dissected, and his skeleton dressed in his

customary garb and preserved in the University College, London.

Bentham's failure at the Bar caused him no small disappointment,

and it was not until the publication of a "Fragment on Government"

in 1776 that he felt himself redeemed with public opinion. The

"Principles of Morals and Legislation" was first published in 1789,

but was actually in print nine years earlier. It was primarily

intended as the introductory volume of a complete work designed to

cover the whole field of the principles of legislation--principles

which, as we have seen, were based on that doctrine of utility

which the author regarded as equally the basis of ethics.

_I.--Calculation of Pleasures and Pains_

Mankind is governed by pain and pleasure. Utility is that property in

anything which tends to produce happiness in the party concerned,

whether an individual or a community. The principle of utility makes

utility the criterion for approval or disapproval of every kind of

action. An act which conforms to this principle is one which ought to be

done, or is not one which ought not to be done; is right, or, at least,

not wrong. There is no other criterion possible which cannot ultimately

be reduced to the personal sentiment of the individual.

The sources or sanctions of pleasure and pain are four--the physical, in

the ordinary course of nature; political, officially imposed; moral or

popular, imposed by public opinion; and religion. Pains under the first

head are calamities; under the other three are punishments. Under the

first three heads, they concern the present life only. The second,

third, and the fourth, as concerns this life, operate through the first;

but the first operates independently of the others.

Pleasures and pains, then, are the instruments with which the legislator

has to work; he must, therefore, be able to gauge their relative values.

These depend primarily and simply on four things--intensity, duration,

certainty or uncertainty, propinquity or remoteness. Secondarily, on

fecundity, the consequent probable multiplication of the like

sensations; and purity, the improbability of consequent contrary

sensations. Finally, on extent--the number of persons pleasurably or

painfully affected. All these being weighed together, if the pleasurable

tendency predominates, the act is good; if the painful, bad.

Pleasures and pains are either simple or complex--_i.e._, resolvable

into several simple pleasures, and may be enumerated; as those of the

senses, of wealth, of piety, of benevolence, of malevolence, of

association, of imagination. Different persons are sensible to the same

pleasure in different degrees, and the sensibility of the individual

varies under different circumstances. Circumstances affecting

sensibility are various--such as health, strength, sex, age, education;

they may be circumstances of the body, of the mind, of the inclinations.

Their influence can be reckoned approximately, but should be taken into

consideration so far as is practicable.

The legislator and the judge are concerned with the existing causes of

pleasure and pain, but of pain rather than pleasure--the mischiefs which

it is desired to prevent, and the punishments by which it is sought to

prevent them--and for the due apportionment of the latter they should

have before them the complete list of punishments and of circumstances

affecting sensibility. By taking the two together--with one list or the

other for basis, preferably the punishment list--a classification of

appropriate penalties is attainable.

An analytical summary of the circumstances affecting sensibility will

distinguish as secondary--_i.e._, as acting not immediately but

mediately through the primary--sex, age, station in life, education,

climate, religion. The others, all primary, are connate--_viz._, radical

frame of mind and body--or adventitious. The adventitious are personal

or exterior. The personal concern a man's disposition of body or mind,

or his actions; the exterior the things or the persons he is concerned

with.

_II.--Human Actions Analysed_

The business of government is to promote the happiness of society by

rewarding and punishing, especially by punishing acts tending to

diminish happiness. An act demands punishment in proportion to its

tendency to diminish happiness--_i.e._, as the sum of its consequences

does so. Only such consequences are referred to as influence the

production of pain or pleasure. The intention, as involving other

consequences, must also be taken into consideration. And the intention

depends on the state both of the will and of the understanding as to the

circumstances--consciousness, unconsciousness, or false consciousness

regarding them. Hence with regard to each action we have to consider (1)

the act itself, (2) the circumstances, (3) the intentionality, (4) the

attendant consciousness, and also (5) the motive, and (6) the general

disposition indicated.

Acts are positive and negative--_i.e._, of commission and omission, or

forbearance; external or corporal, and internal or mental; transitive,

affecting some body other than the agent's, or intransitive; transient

or continued (mere repetition is not the same as habit). Circumstances

are material when visibly related to the consequences in point of

casuality, directly or indirectly. They may be criminative, or

exculpative, or aggravative, or evidential.

The intention may regard the act itself only, or its consequences

also--for instance, you may touch a man intentionally, and by doing so

cause his death unintentionally. But you cannot intend the

consequences--though you may have desired them--without intending the

action. The consequences may be intended directly or indirectly, and may

or may not be the only thing intended. The intention is good or bad as

the consequences intended are good or bad.

But these actually depend on the circumstances which are independent of

the intention; here the important point is the man's consciousness of

the circumstances, which are objects not of the will, but of the

understanding. If he is conscious of the circumstances and of their

materiality, the act is advised; if not, unadvised. Unadvisedness may be

due either to heedlessness or to misapprehension. And here we may remark

that we may speak of a bad intention, though the motive was good, if the

consequences intended were bad, and _vice versa_. In this sense also,

the intention may be innocent--that is, not bad, without being

positively good.

Of motives, we are concerned with practical motives only, not those

which are purely speculative. These are either internal or external;

either events _in esse_, or events in prospect. The immediate motive is

an internal motive _in esse_--an awakened pleasure or pain at the

prospect of pleasure or pain. All others are comparatively remote.

Now, since the motive is always primarily to produce some pleasure or

prevent some pain, and since pleasure is identical with good, and pain

with evil, it follows that no motive is in itself bad. The motive is

good if it tends to produce a balance of pleasure; bad, if a balance of

pain. Thus any and every motive may produce actions good, indifferent,

or bad. Hence, in cataloguing motives, we must employ only neutral

terms, _i.e._, not such as are associated with goodness as--piety,

honour--or with badness--as lust, avarice.

The motives, of course, correspond to the various pleasures as

previously enumerated. They may be classified as good, bad, or

indifferent, according as their consequences are more commonly good,

bad, or indifferent; but the dangers of such classification are obvious.

In fact, we cannot affirm goodness, badness, or indifference of motive,

except in the particular instance. A better classification is into the

social--including goodwill, love of reputation, desire of amity,

religion; dissocial--displeasure; self-regarding--physical desire,

pecuniary interest, love of power, self-preservation.

Of all these, the dictates of goodwill are the surest of coinciding with

utility, since utility corresponds precisely to the widest and

best-advised goodwill. Even here, however, there may be failure, since

benevolence towards one group may clash with benevolence towards

another. Next stands love of reputation, which is less secure, since it

may lead to asceticism and hypocrisy. Third comes the desire of amity,

valuable as the sphere in which amity is sought is extended, but also

liable to breed insincerity. Religion would stand first of all if we all

had a correct perception of the divine goodness; but not when we

conceive of God as malevolent or capricious; and, as a matter of fact,

our conception of the Deity is controlled by our personal biases.

The self-regarding motives are, _ex hypothesi_, not so closely related

to utility as the social motives, and the dissocial motives manifestly

stand at the bottom of the scale. In respect to any particular action

there may be a conflict of motives, some impelling towards it, others

restraining from it; and any motive may come in conflict with any other

motive. It will be found hereafter that in the case of some offences the

motive is material in the highest degree, and in others wholly

immaterial; in some cases easy, and in others impossible to gauge.

_III.--The Principles of Punishment_

Goodness or badness, then, cannot be predicated of the motive. What is

good or bad in the man when actuated by one motive or another is his

disposition, or permanent attitude of mind, which is good or bad as

tending to produce effects beneficial to the community. It is to be

considered in regard to its influence on (1) his own happiness; (2)

other people's. The legislator is concerned with it so far as it is

mischievous to others. A man is held to be of a mischievous disposition

when it is presumed--for it is a mere presumption--that he inclines to

acts which appear to him mischievous. Here it is that "intentionality"

and "consciousness" come in.

Where the tendency of the act is good, and the motive is a social one, a

good disposition is indicated; where the tendency is bad, and the motive

is self-regarding, a bad disposition is indicated. Otherwise, the

indication of good or bad disposition may be very dubious or

non-existent; as may easily be seen by constructing examples. Now, our

problem is to measure the depravity of a man's disposition, which may be

defined as the sum of his intentions. The causes of intentions are

motives. The social motives may be called tutelary, as tending to

restrain from mischievous intentions; but any motive may become tutelary

on occasion. Love of ease, and desire of self-preservation, in the form

of fear of punishment, are apt to be tutelary motives.

Now we can see that the strength of a temptation equals the sum of the

impelling motives, minus the sum of the tutelary motives. Hence, the

more susceptible a man is to the standing tutelary motives, the less

likely is he to yield to temptation; in other words, the less depraved

is his disposition. Hence, given the strength of the temptation, the

mischievousness of the disposition is as the apparent mischievousness of

the act. Given the apparent mischievousness of the act, the less the

temptation yielded to, the greater the depravity of disposition; but the

stronger the temptation, the less conclusive is the evidence of

depravity. It follows that the penalty should be increased--_i.e._, the

fear of punishment should be artificially intensified, in proportion as,

apart from that fear, the temptation is stronger.

We now come to consequences. The mischief of the act is the sum of its

mischievous consequences, primary and secondary. The primary mischief

subdivides into original, _i.e._, to the sufferer in the first instance;

and derivative, to the definite persons who suffer as a direct

consequence, whether through their interest, or merely through sympathy.

The secondary mischiefs, affecting not specific persons but the

community, are actual danger, or alarm--the apprehension of pain. For

the occurrence of the act points to the possibility of its repetition;

weakening the influence both of the political and of the moral sanction.

An act of which the primary consequences are mischievous may have

secondary beneficial consequences, which altogether outweigh the primary

mischief--_e.g._, the legal punishment of crime. The circumstances

influencing the secondary mischiefs of alarm and danger are the

intentionality, the consciousness, the motive, and the disposition;

danger depending on the real, and alarm on the apparent, state of mind,

though the real and the apparent coincide more commonly than not.

Between the completely intentional and completely unintentional act

there are various stages, depending on the degree of consciousness, as

explained above. The excellence of the motive does not obliterate the

mischievousness of the act; nor _vice versa_; but the mischief may be

aggravated by a bad motive, as pointing to greater likelihood of

repetition. This is less the case, however, when the motive is

dissocial, such motives being generally less constant, as having

reference to a particular, not a general, object; the religious motive,

as being more constant, is more pernicious when it has a mischievous

issue.

Punishment, being primarily mischievous, is out of place when

groundless, inefficacious, unprofitable, or needless. Punishment is

inefficious when it is _ex post facto_, or extra-legal, or secret; or in

the case of irresponsible (including intoxicated) persons; and also so

far as the intention of the act was incomplete, or where the act was

actually or practically under compulsion. It is unprofitable when under

ordinary circumstances the evils of the punishment outweigh those of the

offence; this subject, however, will be more fully dealt with later. It

is needless when the end in view can be as well or better attained

otherwise.

Now, the aim of the legislator is (1) to prevent mischief altogether;

(2) to minimise the inclination to do mischief; (3) to make the

prevention cheap. Hence, (1) the punishment must outweigh the profit of

the offence to the doer; (2) the greater the mischief, the greater the

expense worth incurring to prevent it; (3) alternative offences which

are not equally mischievous, as robbery and robbery with murder, must

not be equally punished; (4) the punishment must not be excessive, and

therefore should take into account the circumstances influencing

sensibility; (5) so also must the weakness of the punishment due to its

remoteness, and the impelling force of habit.

The properties of punishment necessary to its adjustment to a particular

offence are these: (1) variability in point of quantity, so that it

shall be neither excessive nor deficient; (2) equality, so that when

applied in equal degree, it shall cause equal pain--_e.g._, banishment

may mean much to one man, little to another; (3) commensurability with

other punishments; (4) characteristicalness, or appropriateness; (5)

exemplarity--it must not seem less than it is in fact; (6)

frugality--none of the pain it causes is to be wasted. Minor desirable

qualities are (7) subserviency to reformation of character; (8)

efficiency in disabling from mischief; (9) subserviency to compensation;

(10) popularity, _i.e._, accordant to common approbation; (11)

remissibility.

_IV.--Division of Offences_

An offence--a punishable act--is constituted such by the community;

though it ought not to be an offense unless contrary to utility, it may

be so. It is assumed to be a detrimental act; detrimental therefore to

some person or persons, whether the offender himself or other assignable

persons, or to persons not assignable.

Offences against assignable persons other than the offender form the

first class; offences against individuals, or private offences, or

private extra-regarding offences. The second class is formed by

semi-public offences, _i.e._, not against assignable individuals, nor

the community at large, but a separable group in the community, _e.g._,

a class or a locality. The third class are those which are simply

self-regarding; the fourth, against the community at large; the fifth,

multiform or heterogeneous, comprising falsehood and breaches of trust.

The first class may be subdivided into offences against (1) the person,

(2) reputation, (3) property, (4) condition--_i.e._, the serviceableness

to the individual of other persons, (5) person and property together,

(6) person and reputation together.

The second, "semi-public," class, being acts which endanger a portion of

the community, are those operating through calamity, or of mere

delinquency. The latter are subdivided on the same lines as private

offences. So with the third or self-regarding class.

In class four, public offences fall under eleven divisions: (1)

offences against external security--_i.e._, from foreign foes; (2)

against justice--_i.e._, the execution of justice; (3) against the

preventive branch of police; (4) against the public force--_i.e._,

military control; (5) against increase of national felicity; (6) against

public wealth--_i.e._, the exchequer; (7) against population; (8)

against national wealth--_i.e._, enrichment of the population; (9)

against sovereignty; (10) against religion; (11) against national

interests in general.

In class five, falsehood comprises simple falsehoods, forgery,

personation, and perjury; again distributable like the private offences.

In the case of trusts, there are two parties--the trustee and the

beneficiary. Offences under this head cannot, for various reasons, be

conveniently referred to offences against property or condition, which

also must be kept separate from each other. As regards the existence of

a trust: as against the trustee, offences are (1) wrongful

non-investment of trust, and wrongful interception of trust, where the

trusteeship is to his benefit; or (2) where it is troublesome, wrongful

imposition of trust. Both may similarly be offences against the

beneficiary. As regards the exercise of the trust, we have negative

breach of trust, positive breach of trust, abuse of trust, disturbance

of trust, and bribery.

We may now distribute class one--offences against the individual--into

_genera_; to do so with the other classes would be superfluous. Simple

offences against the person are actions referring to his actual person,

body or mind, or external objects affecting his happiness. These must

take effect either through his will, or not. In the former case, either

by constraint, or restraint, confinement, or banishment.

In any case the effect will be mortal or not mortal; if not mortal,

reparable or irreparable injury when corporal, actual, or apprehended,

sufferance when mental. So the list stands--simple and irreparable

corporal injuries, simple injurious restraint or constraint, wrongful

confinement or banishment, homicide or menacement, actual or apprehended

mental injuries. Against reputation the _genera_ of offences are (i)

defamation, (2) vilification. Of offences against property, simple in

their effects, whether by breach of trust or otherwise, the _genera_

are: wrongful non-investment, interception, divestment, usurpation,

investment, of property; wrongful withholding of services, destruction,

occupation, or detainment, embezzlement, theft, defraudment, extortion.

Of complex offences against person and reputation together: corporal

insults, insulting menacement, seduction, and forcible seduction, simple

lascivious injuries. Against person and property together: forcible

interception, divestment, usurpation, investment, or destruction of

property, forcible occupation or detainment of movables, forcible entry,

forcible detainment of immovables, robbery.

As to offences against condition: conditions are either domestic or

civil; domestic relations are either purely natural, purely instituted,

or mixed. Of the first, we are concerned only with the marital,

parental, and filial relations. Under the second head are the relations

of master and servant, guardian and ward. In the case of master and

servants, the headings of offences are much like those against property.

Guardianship is required in the cases of infancy and insanity; again the

list of offences is similar. The parental and filial relations, so far

as they are affected by institutions, comprise those both of master and

servant, and of guardian and ward; so that the offences are

correspondent.

The relation of husband and wife also comprises those of master and

guardian to servant and ward. But there are further certain reciprocal

services which are the subject of the marital contract, by which

polygamy and adultery are constituted offences in Christian countries,

and also the refusal of conjugal rights.

From domestic conditions we pass to civil. Eliminating all those which

can be brought under the categories of trusts and domestic conditions,

there remain conditions, constituted by beneficial powers over things,

beneficial rights to things, rights to services, and by corresponding

duties; and between these and property there is no clear line of

demarcation, yet we can hit upon some such conditions as separable. Such

are rank and profession which entail specific obligations and

rights--these are not property but conditions; as distinguished from

other exclusive rights bestowed by the law, concerned with saleable

articles (_e.g._, copyright), which convey not conditions, but property.

So, naturalisation conveys the conditions of a natural born subject.

Public offences are to be catalogued in a manner similar to private

offences.

My object has been to combine intelligibility with precision; technical

terms lack the former quality, popular terms the latter. Hence the plan

of the foregoing analysis has been to take the logical whole constituted

by the sum of possible offences, dissect it in as many directions as

were necessary, and carry the process down to the point where each idea

could be expressed in current phraseology. Thus it becomes equally

applicable to the legal concerns of all countries or systems.

The advantages of this method are: it is convenient for the memory,

gives room for general propositions, points out the reason of the law,

and is applicable to the laws of all nations. Hence we are able to

characterise the five classes of offences. Thus, of private offences, we

note that they are primarily against assignable individuals, admit of

compensation and retaliation, and so on; of semi-public offences, that

they are not against assignable individuals, and, with self-regarding

offences, admit of neither compensation nor retaliation; to which a

series of generalisations respecting each class can be added.

The relation between penal jurisprudence and private ethics must be

clarified. Both are concerned with the production of happiness. A man's

private ethics are concerned with his duty to himself and to his

neighbour; prudence, probity, and beneficence. Those cases described as

unmeet for punishment are all within the ethical, but outside the

legislative, sphere, except the "groundless" cases, which are outside

both. The special field of private ethics is among the cases where

punishment is "unprofitable" or "inefficacious," notably those which are

the concern of prudence. So with the rules of beneficence; but

beneficence might well be made compulsory in a greater degree than it

is. The special sphere of legislation, however, lies in the field of

probity.

A work of jurisprudence is either expository of what the law is, or

censorial, showing what it should be. It may relate to either local or

universal jurisprudence; but if expository can hardly be more than

local. It may be internal, or international, though there is very little

law in international procedure; if internal, it may be national or

provincial, it may be historical or living; it may be divided into

statutory and customary, into civil and penal or criminal.